The Garuda Pancasila, the National Emblem of the Republic of Indonesia, is indeed iconic. The figure of this giant bird that is said to be able to cover the sunlight has been known since the 5th century and has become a symbol of many Hindu kingdoms in the archipelago. So, since it was established and used in various national activities, its presence has always inspired people from each generation to display it in a better and better form.
But is that allowed? Modifying and/or using the Garuda Pancasila as a Trademark in Indonesia? Here is the answer from the perspective of Intellectual Property law.
This large and strong figure, containing the date of the Proclamation of Independence of the Republic of Indonesia on its feathers (17-8-1945), was already in the minds of the nation’s founders when they determined the Garuda Pancasila as the National Emblem. In early 1950, the government of the Republic of Indonesia United (RIS) created a technical committee called the National Emblem Committee under the coordination of Minister Zonder Porto Folio Sultan Hamid II, with the Chairman of the Committee, Muhammad Yamin, and Ki Hajar Dewantara, M.A. Pellaupessy, Mohammad Natsir, and R.M. Ng. Purbatjaraka as its members.
President Soekarno then inaugurated it at the RIS Cabinet Meeting on February 11, 1950. Its use was then regulated in Government Regulation No. 43 of 1958 and amended by the enactment of Law of the Republic of Indonesia Number 24 of 2009 concerning the Flag, Language, National Emblem, and National Anthem to implement Article 36A of the 1945 Constitution (UUD 1945) which reads, “The National Emblem is the Garuda Pancasila with the motto Bhineka Tunggal Ika.”
For those of you who need clarification as to why the 1945 Constitution already contains the Garuda Pancasila even though the draft was only made in 1950, it is because Article 36A resulted from the Second Amendment in 2000. Previously, only Article 36 contained the following: “The National Language is Indonesian.” However, after the amendment, Article 36A (national emblem), 36B (national anthem), and 36C (further provisions related to the flag, language, national emblem, and national anthem are regulated by law) were presented.
Then specifically, Article 57 of Law Number 24 of 2009 contains the following prohibitions related to the National Emblem:
- It is prohibited to cross out, write, draw, or damage the National Emblem with the intention of tarnishing, insulting, or degrading the honor of the National Emblem;
- It is prohibited to use the National Emblem that is damaged and does not match the shape, color, and size comparison;
- It is prohibited to create a symbol for an individual, political party, association, organization, and/or company that is the same as or resembles the national emblem; and
- It is prohibited to use the National Emblem for purposes other than those regulated by the Law.
A person who violates the prohibition can be punished with a maximum imprisonment of one year or a maximum fine of IDR 100 million.
Although later, the Constitutional Court, through Constitutional Court Decision Number 4/PUU-X/2012, stated the provisions of Article 57 letter d jo. Article 69 letter c of Law 24/2009 concerning the prohibition of the use of the National Emblem for other purposes and its criminal sanctions are contrary to the 1945 Constitution of the Republic of Indonesia and do not have binding legal force, which means that since then the National Emblem can be used freely to a certain extent to support the spirit of nationalism, but does not apply if it is related to Trademark registration.
So even if you can use the Garuda Pancasila in a design for a t-shirt, cap, pin, or other merchandise that is traded, you still cannot register it as a Trademark. As regulated in Article 21 Paragraph (2)b of the Trademark Law, which reads, “An application is rejected if the Trademark is an imitation or resembles the name or abbreviation of a name, flag, insignia, symbol or emblem of a country, or national or international institution, except with the written approval of the authorized party.”
Legal Problems on the Use of National Emblem in Sports Jerseys
A few months ago, there was a debate regarding the use of the National Emblem on the jersey of the Indonesian Football Team. It is common and natural for a national jersey to change its design every season or every year. When the jersey’s vendor changes, the design and logo containing the National Emblem also changes. During the last change, the latest logo was registered with the name of the owner of the jersey’s manufacturer, and this invited controversy because the public began to understand the existence of Article 21 Paragraph (2) b of the Trademark Law.
However, the public forgets the sentence “written approval from the authorized party.” This controversy ended in June 2024 when the Indonesia Football Association (PSSI), the official parent organization of football in Indonesia, took over all logos applied to the Directorate General of Intellectual Property (DGIP). So, if we open the DGIP database today, both old and new logos have listed PSSI as the Trademark owner.
Thus, PSSI has the Exclusive Right to use the logo, and anyone who wants to use it must have permission from PSSI.
Old (DID2024030570) & New (DID2024006041) Logo of PSSI
It is a bit unfortunate that the logo does not contain the initials of PSSI, so it will cause polemics if other sports organizations want to register a logo that also contains the National Emblem. This means that other parties must file and register it with a different logo, but it still has similarities in principle to the logo filed by the PSSI.
Should you need further information regarding Trademark protection or registration in Indonesia and worldwide, please do not hesitate to email us at [email protected].
